“Do You Feel a Draft?: An Historical Perspective on Rights in Times of Politically Created Hysteria”

“You don’t need to be a weatherman to know which way the wind blows”, especially when “liberals” in the media [The Washington Post, David Broder (Nov. 4), Anna Quindlen (Nov. 5), and many others subsequently] suddenly start singing in concert. And what is their song?: that America should again embrace the draft, conscription, or as Daniel Webster termed it: “slavery” (involuntary servitude). And their chorus is rather seductive: the draft will level out the differences in society, make the Ivy Leaguers appreciate the unwashed masses, and correct the inequities in American society just as it (supposedly, but in fact never) happened to the “greatest” generation during the “good” war.

The draft–conscription into military service (Thomasson, 2001b, II:49-52)–is one of the most diagnostic measures of the vector of change (or of fluctuation, between the poles of individual liberty and its repression), in American national culture and civil religion (Thomasson, 2001a, I:342-344). Before the beginning of the American Republic as it came to exist with the Constitution of 1789, a national or federal power to maintain standing armies or to fill them through a draft was almost uniformly disliked. This reflected the colonists’ English heritage. With independence, the several former colonies and successor states had laws enabling conscription into their state militias, as well as providing specific protection for those scrupulous of bearing arms for religious reasons. A national or federal system of conscription was totally rejected for the new Republic. Starting in 1814, a failed federal effort to impose conscription signaled a change. During the latter part of the War between the States both the Union and Confederacy imposed a draft, though these were widely opposed. World War I again saw the imposition of conscription. After World War II a peacetime universal military service law and draft became the standard until late in the Vietnam war, when a lottery system replaced it. The draft was converted to a standby system with the conversion to an all volunteer army, and remains in place today.

Colonies, States, Constitution and the Bill of Rights

In the colonials’ opposition to conscription and a national standing army they simply followed the previous evolution of public sentiment and English law. In 1659, for example, George Thomason, a bookseller and clandestine archivist of publications dealing with the English Civil War, in 1659 printed a broadside entitled Six New Queries2, in which he asked rhetorically

“Whether or No, any rational man in England can or may expect any good from a Parliament when an Army is in power at the same time in the Nation?”

By 1698, the English Bill of Right established

“That the raising or keeping a standing army within the kingdom in time of peace unless it be with the consent of parliament is against law.” (¶ 23:6)

It followed logically, and without any pretense at originality, that in October 1774 the first American Continental Congress asserted

“17 9. That the keeping a Standing army in these colonies, in times of peace, without the consent of the legislature of that colony in which such army is kept, is against law.”

And again, they reiterated

“27 Also, that the keeping a standing army in several of these colonies, in time of peace, without the consent of the legislature of that colony in which the army is kept, is against law.” (First Continental Congress Oct 1774)

A national military force raised by conscription was even more of a threat, as reflected in the Declaration of Independence’s complaint against the king:

“He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their hands.” (1776)

Between the War of Independence and the ratification of the Constitution, the states enlarged their constitutional powers over and against any possible federal power. The first Massachusetts Constitution

“Provided, that the said governor shall not, at any time hereafter, by virtue of any power by this constitution granted, or hereafter to be granted to him by the legislature, transport any of the inhabitants of this Commonwealth, or oblige them to march out of the limits of the same, without their free and voluntary consent, or the consent of the general court; except so far as may be necessary to march or transport them by land or water, for the defence of such part of the state to which they cannot otherwise conveniently have access.” (§2:1:9)

The Federalist Papers (Rossiter, 1961) and countless anti-Federalist essays (e.g. Borden, 1965), that were written while the Constitution was being debated are consistent in denying to a national government either the power to conscript or to maintain a standing army. Other freedoms, many of which had been taken for granted in England after 1689, also were also being fought for as ratification of the completed Constitution was pursued.

Massachusetts, absolutely crucial to ratification, on 6 February 1788, voted 187 to 168 to ratify, but that scant majority was obtained only after opponents stipulated and the Convention recommended a set of amendments to be adopted by the First U.S. Congress. This became the formula for ratification in other states. New Hampshire, after adjourning on 13 February 1788 rather than seeing the Constitution go down to certain defeat, reassembled and ratified the Constitution on 21 June 1788, which brought the total number of states ratifying to nine (sufficient to implement the government the document defined, but without the support of the populous and powerful states of Virginia and New York). Virginia’s 25 June 1788 ratification of the Constitution was opposed strenuously by Patrick Henry and others (the vote was 89 for ratification and 79 against, which was hardly a vote of confidence), and was followed for that reason by the proposal of a Bill of Rights protecting the citizens from the powers of the national government, and other amendments. New York voted to ratify on 26 July 1788 by only 30 votes to 27, and also proposed amendments and adopted a letter to be circulated to the other states calling for a second constitutional convention. On 2 August 1788 North Carolina declined to ratify the constitution until a Bill of Rights had been adopted. It was then up to the First Congress to craft such protections.

The First Congress spent a great portion of its sessions debating and crafting what became the Bill of Rights. There effectively was no support for a national army. Representative Jackson’s comments were typical:

“In a Republic every man ought to be a soldier, and prepared to resist tyranny and usurpation [from within], as well as invasion, and to prevent the greatest of all evils-a standing army.” (Gales, 1834, I:2:1853)

The executive branch was represented by Washington’s first Secretary of War, General Knox, testifying in support of national military needs:

“Whatever may be the efficacy of a standing army in war, it cannot in peace be considered as friendly to the rights of human nature.” (Gales, 1834, I:2:2143)

The federal military establishment was to be a small professional officer corps, expert in artillery, tactics, and maritime skills; and a minimal border force as a first line of defense against invasion. As such it would be subordinate to the power of the larger state militias, which were to be the control mechanism for preventing the rise of a despotic sovereign. In the Bill of Rights debates, Federalists like Alexander Hamilton only differed from anti-Federalists precisely in their support of such a limited national force as a necessary evil. But it was universally understood that the federal government could not conscript citizens to its own forces, and that only by the states’ own representatives voting a Congressional Declaration of War could the state militias be drawn upon.

During the Bill of Rights debates, James A. Madison proposed several amendments to guarantee an individual’s right to refuse induction according to the dictates of his own conscience throughout the United States. (Gales, 1834, I:1:451&ff.) The clear reason those amendments failed was that the Congress saw the Constitution as having been drafted precisely to prevent the Federal government from ever having any power whatsoever to conscript for itself or to control state conscription and conscripts. Madison’s amendments would have been superfluous to guarantee freedom from something which was never supposed to exist. Furthermore (and it is discouraging how clearly the Framers anticipated that Federal power could distort their intent), they feared that a Federal guarantee of the rights of conscientious objectors could be perverted into an assertion or endorsement of a Federal government’s “right” to conscript every other man–totally reversing their intent. Congressman Boudinot even objected to the defeat of one proposed amendment that “No person religiously scrupulous shall be compelled to bear arms” (Gales, 1834, I:1:796), on the grounds that this could be misconstrued so that: “People may be led to believe that there is an intention in the General Government to compel all its citizens to bear arms.” (Gales, 1834, I:1:796) Representative Gerry objected to this same proposed amendment, in a clear reference to the English Bill of Rights, on the grounds that the Federal government might, at some future time, “declare who are those religiously scrupulous, and prevent them from bearing arms.” (Gales, 1834, I:1:778) These amendments were defeated. Since only the states were empowered to conscript, and the states guaranteed the rights of conscientious objectors, guarantees in the Federal constitution were rejected as unnecessary, redundant, and potentially dangerous. Later, Mr. Madison proposed legislative amendments to the Uniform Militia Bill, guaranteeing the same right. While these efforts also fell prey to the Founding Fathers’ justifiable distrust of the Federal system, it was still duly noted that as the Bill stood, “The exemption of persons religiously scrupulous of bearing arms is to be provided for by the respective states”. (Gales, 1834, I:2:1875) This also was the position of Washington’s administration. From such a foundation, how did conscription enter American law.

The War of 1812

Like the pigs in Orwell’s Animal Farm, young radicals, achieving power, all too often become what they despised. James Madison, becoming president, proved the rule. Critics in Congress loudly opposed his attempt to annex Canada–what is today known as the War of 1812, which the U.S. lost with the humiliating Treaty of Ghent, notwithstanding Andrew Jackson’s face–saving but irrelevant after-the-fact and too late to change anything “victory” at the Battle of New Orleans. As his war-making effort was failing, it was Madison himself who attempted to institute conscription. The irony of this was not lost on a public who had been told by him that the reason for the war was British “impressment” (conscription) of Americans into their navy.

Daniel Webster was typical of congressional opponents to the draft proposal.

“The administration asserts the right to fill the ranks of the Regular Army by compulsion … Is this, Sir, consistent with the character of a free government? Is this civil liberty? IS this the real character of our constitution? No, sir, indeed it is not. The constitution is libeled, foully libeled. The people of this country have not established for themselves such a fabric of despotism. They have not purchased at a vast expense of their own treasure and of their own blood a Magna Carta to be slaves. Where is it written in the Constitution, in what article or section is it contained, that you may take the children from their parents, and parents from their children, and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it? … [Conscription] for the first time [in the history of the Republic] comes forth … to trample down and destroy the dearest rights of personal liberty. … Sir, I almost disdain to go to quotations and references to prove that such an abominable doctrine has no foundation in the Constitution of the country. It is enough to know that the instrument was intended as the basis of a free government, and that the power [to conscript] contended for is incompatible with any notion of personal liberty. An attempt to maintain this doctrine upon the provisions of the Constitution is an exercise of perverse ingenuity to extract slavery from the substance of a free government. … A free constitution of government is to be construed upon free principles, and every branch of its provisions is to receive such an interpretation as is full of its general spirit. No means are to be taken by implication which would strike us absurdly if expressed. And what would have been more absurd than for this Constitution to have said that to secure the great blessings of liberty it gave the government an uncontrolled power of military conscription?” (Webster, 1903: vol xiv:18-34; 55-69, especially 61-63)

Many speeches by Webster and others, and congressional rejection of the draft bill, reflect the persistence of the Framers’ intent among conservative politicians and in the public’s memory through this period. It would, however, be buried during the War between the States.

An Uncivil War between the States

The national fantasy at the beginning of the War of Northern Aggression (as the Confederacy called it, justifiably, since the blockade of Charleston Harbor by Fort Sumter legally was an act of war), was that it would be short. As it dragged on in a seemingly endless and extraordinarily bloody way, support for the conflict waned. In desperation, national governments in both North and South simply ignored all original intent and began to conscript troops, beginning with Lincoln’s Conscription Act in 1863. Ironically, the North, claiming to pursue the war to make men free, compelled men to fight in a national army in just the way Webster had condemned, extending even to the penalty of death for desertion. In the South, while externally asserting the rights of individual states over any larger collective or governmental body as a causa belli against the North, the government in Richmond reversed itself internally and claimed the power to draft into the Army of the Confederacy, and ignoring internal critics compounded the inconsistency toward the end of the war by even approving the drafting of slaves– who supposedly were not even fully human–into their forces.
Expediency overruled every principle, and in response to Lincoln’s draft there was widespread draft-evasion (between 112,901 and 161,286 known cases), desertion (between 195,255 and 260,399), and uncounted individuals and families who moved to areas such as New Orleans, Memphis, and the territories of the west that were outside the legal zone of draft enforcement. Anti-draft riots racked northern cities, and some officers administering the draft in the North were attacked and a few assassinated. At least 98 officers of the Bureau of the Provost Marshall General were killed or wounded by deserters resisting arrest or by their friends and families. Even being silent in response to a question about the whereabouts of a potential draftee was criminalized in the resulting atmosphere of martial law. Troops exhausted from the Battle of Gettysburg had to be brought to New York City to suppress anti-draft rioting there, which then took what was for the administration a politically convenient turn, becoming essentially murderous attacks scapegoating the city’s black community. Riots also reached dangerous levels in Boston, Philadelphia, Troy, New York, and elsewhere. In the hard-coal mining areas of Pennsylvania, anti-draft paramilitary groups-de facto militias-numbered in the thousands of members and controlled much of the territory.

Opposition by the poor to the draft in the North especially was compounded by the fact that the federal law allowed an individual commutation or short term exemption from the draft upon payment of, for the poor an impossible fee of $300.00, of which 86,724 individuals availed themselves, or a total exemption by paying a fee of $500.00 for a substitute to be called in one’s place, which occurred in 118,010 cases. While the government asserted that opposition to the draft was motivated by southern sympathizers and spies, in fact it was home-grown, largely class-conflict based, quintessentially American, and often constitutionally quite sophisticated.

In Kneedler v. Lane, the only court case in which the constitutionality of Lincoln’s draft was examined on the basis of original intent, the Pennsylvania State Supreme Court in a split decision found federal conscription to be unconstitutional and issued an injunction against its implementation in the state. (Bernstein, 1967. Southerners were not alone in their understanding of States Rights. In Kneedler v. Lane a northern state court finds federal actions–specifically conscription– unconstitutional and enjoins their implementation.) The Pennsylvania court reached this decision prior to the existence of Amendment XIII:1, which makes involuntary servitude unconstitutional without qualification. (Whatever the intent of this amendment’s drafters, actual or plausible original intent never inhibited later courts from supporting the draft. And a draft is, by any definition possible without completely perverting the English language, in fact involuntary servitude for most of its victims, as Webster pointed out.) The Kneedler v. Lane decision remains intact, but the injunction survived for less than a year. The Lincoln administration in Washington did not even attempt a court constitutional challenge to the decision, which was virtually impregnable as a matter of law and of states’ rights. Lincoln’s suspension of the writ of habeas corpus, however, conveniently prevented similar challenges elsewhere. Then, in one of the most bizarre manipulations in the history of American jurisprudence, after the chief justice of the Pennsylvania court retired and a Radical Republican was appointed in his place, the new chief justice, without holding any hearings or the introduction of any new evidence, simply had the court’s new majority re-vote and quash the injunction. This blatantly illegal proceeding did not remove the judgement of unconstitutionality, but it set the stage for a later even more dishonest legal process.

World War I – Supreme Judicial Perversion of the Constitution

After the Civil War was over, the draft receded from public memory until the nation was being geared up by the administration of Woodrow Wilson for World War I. Again there was widespread opposition to conscription, but the government did not hesitate to allude to conscription in 1863-1865 as sufficient precedent. The Arver case finally brought the draft through the federal courts to the Supreme Court. (Arver v. U.S. 245 US 366, 1918) In one of the most blatantly dishonest decisions in the history of the court, it erased any distinction between state and federal conscription, holding that there was no basis in original intent to preclude federal conscription. It further lied that there was no significant congressional effort to oppose conscription in the War of 1812, arguing that Madison’s 1814 draft bill had been supported by “unanswerable argument” (Arver, 370), and that they (the court) “need not stop to consider” what they refused to recognize as the constitutionally based congressional opposition which so effectively stalled the Draft bill that, as the Court incredibly rationalized “Peace came before the bill was enacted” (Arver, 385). These blatantly lying jurists did not dare confront Daniel Webster’s clear and well known logic.

“Armies of any magnitude can here [in the U.S.] be nothing but the people embodied; and if the object (war) not be one for which the people will [voluntarily] embody, there can be no armies.” (Webster, 1903:xiv:27)

Both of Webster’s points ideas are reflected in Alexander Hamilton’s intent that the “war powers” effectively would be restrained by the people–a real and effective democratic balance of powers–who by aligning themselves with either their state militia or the Federal army, could protect themselves against despotism.

“Power being almost always the rival of power, the general government will at times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.” (Federalist 28 Hamilton:7)

In complete and conscious disregard of the founding fathers’ intent, in 1918 the Arver court found conscription constitutional, spewing unsubstantiatable dicta (legal pornography) to the effect that:

“The authority to raise armies was intended to be limited to the right to call an army into existence counting alone upon the willingness of the citizen to do his duty in time of public need, that is, in time of war [was an idea] devoid of foundation [in American history].” (Arver, 378)

Rather than the government existing to serve the individual, the Arver Court created a new doctrine, wherein the individual citizen exists “to render military service in case of need” regardless of personal feelings, and asserts, in deed enforces “the right of government to compel it” to insure its own survival at whatever the cost might be to the individual (Arver, 367). Thus the means (government) to insure freedom has become an end in itself, and the survival of the nation as the highest priority in American civil religion has come to justify trampling individual liberties.

If the rest of the Arver decision is at best a lying, perverted expedient fantasy in the service of political militarism, the court outdid itself with an even more contrary-to-fact citation of Kneedler v. Lane itself. They acknowledged it as the only case in which there was a judicial challenge to the draft, but instead of citing the decision against the draft, claimed exactly the opposite of fact:

“[I]n the only case to which we have been referred where the constitutionality of the act of 1863 was contemporaneously challenged on grounds akin to, if not absolutely identical with, those here urged, the validity of the act was maintained for reasons not different from those which control our judgment.” Kneedler v. Lane, 45 Pa. 238.

This claim that the Pennsylvania court had found the draft constitutional was simply and blatantly a lie. The court did this by pretending that the illegal quashing of the indictment was a decision in itself (Arver, 388). It is a strange and unprecedented chapter in legal history. Despite the fact that the court has never dealt with original intent in its analysis of the draft, the Arver and later courts also have evaded any serious contemporary interpretation of the “equal protection” clause of the XIV amendment, the plain sense of which, today, would require conscription of women as well as men since the Victorian stereotypes of sex-defined roles no longer are accepted in society in general or in the U.S. combat military.

All claims of the constitutionality of the draft rest on Arver. It would be comforting if the Arver decision could be attributed to the court being total ignoramuses as well as party hacks. Unfortunately, while hacks (and judicial whores) they were, they were not ignorant of the intent of the Founding Fathers and the wall between state militias and Federal standing armies which the Constitution’s writers had sought forever to erect. These Arver court jurists were some of the most sophisticated in our history. Foremost among them was Oliver Wendell Holmes. Justice Holmes is most known today for what people assume to be a dictum of superb rationality. His is the quotation which states that the outside limit of free speech should be “shouting fire in a crowded theater.” This seems so reasonable, so cooly logical (who wants to set off a panic in which people get trampled and suffocate–it happens today in rock concerts just as it could then in vaudeville), so humane, until we read it in context. The context precisely was in Schenck v. U.S., 249 US 47 (1919), a World War I case that denied 1st Amendment “free speech” protections to opposition to the draft and war. Schenck involved government censorship and suppression of free speech during World War I, specifically with regard to opposing conscription. Holmes equated speech (including cartoons) opposing the draft and the war to shouting fire in a crowded theater. In order to protect the draft, the court in Schenck overturned virtually all normal protections of free speech in its most essential form, that of political speech and dissent. Nothing was to be allowed to get in the way of the military draft. And almost nothing has, from that time until the present. When such a basic civil liberty is destroyed, as in the case of conscription, subsequent escalating acts of destruction of civil liberites, such as Lincoln suspending the issuing of writs of habeas corpus, or the Schenck v. U.S. court suppressing free speech, are necessary to preserve the totalitarian state.

In World War I, beside the question of the constitutionality of conscription itself, due to the law’s universal reach the rights of conscientious objectors and other draft refusers became a major focus. Members of “historic peace churches” (Amish, Mennonites, Quakers, etc.), were theoretically protected nationally, as they had been by state militia laws. But the treatment of conscientious objectors was not benign. At one extreme, because of their radical rejection of anything other than the traditional clothing of their faith, some Hutterite brethren imprisoned at Fort Leavenworth died from outdoor exposure to the elements where they were left naked after refusing to wear military uniforms. At another extreme, Jehovah’s Witnesses who denied having allegiance to anything but a heavenly kingdom were sentenced to twenty years imprisonment. For other reasons, after being held for nine months they were given a new trial, at which time the government quietly dropped the charges against them.

World War II

The first U.S. peacetime draft was begun in 1940, with passage of the Burke-Wadsworth Act. This law saw the criterion of membership in a historic peace church give way to a Selective Service or draft board’s evaluation of an individual’s personal religious conscience precluding “participation in war in any form”. This standard, in theory, opened the door during World War II, to conscientious objection to military service by members of almost any religious faith. In turn, the law came to focus not on institutional religious affiliation but on the development of an individual’s religious conscience, whatever faith he might have. What was demanded was a personal religious commitment against participation in war in any form, based on a belief in a Supreme Being. This clearly Euro-centric definition of religion would be attacked later. These legal changes did not answer the problem of what to do with those who successfully opposed conscription and won objector status. Other than supposedly non-combat roles in the military such as medical corpsman–whose responsibility it is to maintain the fighting effectiveness of combat units–there were still few forms of alternative service in which objectors could be placed. Organizations such as the War Resisters League and the Central Committee for Conscientious Objectors grew, defending the rights of those opposed to conscripted military service.

With America’s entrance into the war, the draft accelerated considerably, as did voluntary enlistments. The wartime draft highlighted basic inconsistencies in American society. African Americans who were precluded from voting by poll taxes and by often rigged literacy tests were drafted into a segregated military and were being sent overseas to restore “democracy” to our allies. Native Americans in New Mexico–whose right to vote as citizens of Mexico had been totally abrogated with the American takeover in 1849–were drafted, but because they were Indians they constitutionally would be barred from voting in their home state until 1948. Japanese Americans from Hawaii who had been expelled from the islands’ militia in 1941 and draft classified as 4C (Enemy Alien), later were formed into the 100th Combat battalion which would be attached to the equally racially segregated 442nd Regimental Combat Team, the remainder of which was comprised of young Japanese American men from the mainland (predominantly nisei). They left behind their families, who had been sent to concentration camps, where they remained throughout the war. Like African American units during the Civil War, the 442nd was led exclusively by white commissioned officers. During the war the unit served in Italy, and again like all African American units in the civil war, they suffered higher casualties (but in an age of modern record keeping were more decorated than any comparable unit).

In February 1943, the war situation was considered so desperate that Representative Wadsworth (R-NY) and Senator Austin (R-VT), introduced legislation to enlist all men, in order to coerce workers to shift from non-essential occupations to war-related industries and farm work. The legislation also was designed to register all women of ages 18-50 with the Selective Service, as a first step toward conscripting all but mothers with children for low-paid war work. These and other events laid the foundations for post-war changes in American society.

Cold, Hot, and Undeclared Wars [aka Vietnam]

After World War II, the surviving majority of some 16 million men and women at arms were being discharged and returned home. Despite an American edge in nuclear weaponry, the specter of Cold War with the Soviet Union led, in late 1945, to a broad controversy within American society over the advisability of a universal obligation of peacetime conscripted military service. While some religious groups such as the Mormons strongly objected to the militarization of society which could result, and many also saw this as an even more radical departure from constitutional original intent, the plan became law. Then the United Nations’ Korean Police Action, in which the United States had the major role, quickly absorbed successive generations of draftees. Opposition to the draft was stifled during the Cold War, often by the then usual labeling technique of Red-baiting. At the same time, in part due to the universal nature of the new draft, President Harry S. Truman ordered the desegregation of all military units. While this process would proceed most slowly in the officer corps, the draft of enlisted men from the society as a whole and the impossibility of easily concealing segregated units set a precedent that would echo back into the national society, as veterans joined civil rights movements. While some military classifications (cook, stoker, valet or butler) would continue for years to be held predominantly by persons of color, opposition to discrimination in the military became more widespread. From the end of the Korean conflict until 1965, virtually all young men who were physically and mentally qualified, but were not fathers, on student deferments, or conscientious objectors, had to plan on being drafted at sometime between age 18 and 36. Escalation of the Vietnam War by President Johnson suddenly changed this draft from a persistent nuisance into a life-threatening presence and an explosive political controversy.

During the Vietnam conflict opposition to the draft and the war reached levels almost as extreme as during the War between the States. Beside the traditional opponents of the draft, many other churches became involved, with prominent religious figures breaking into draft boards, pouring blood on files and committing other acts of civil disobedience. More extreme movements grouped together to resist the draft. David Harris, student body president at Stanford University and an Eagle Scout, gained national publicity and inspired countless others by publicly burning his draft card as an act of non-violent civil disobedience, and like many others went to federal prison for this political speech which, with Holmes’ logic became an “act made criminal”. Countless other individuals developed other strategies of resistance that also had been common after 1863, including going underground and into essentially paramilitary or “terrorist” action (as the government defined it). Some, escaping the conflict, went to Canada and other countries such as Sweden, which in accord with the United Nations’ Universal Declaration of Human Rights, offered them asylum and protection from extradition. Domestically, the Federal Bureau of Investigation developed an entire new effort at tracking draft evaders and deserters (except–as in the case of George W. Bush Jr. going AWOL for a year from his safe “Air Guard” assignment–when the family was so rich and powerful that the FBI somehow forgot the crime). Overseas, the Central Intelligence Agency and military intelligence operations came to focus on expatriate draft evaders and former servicemen (deserters and discharged, especially those who had been in military intelligence and had taken overseas discharges), who became involved with anti-Vietnam war activities. At the same time, opposition to the war and draft widened at home among groups beside those who were draft eligible.

One of the major effects of the widespread opposition to the draft during the Vietnam war was the courts being confronted with an ever-widening range of challenges to its implementation. Draft boards, never popular, soon learned, as their previously secret activities became public through court cases, that they had to operate on the basis of law in denying conscientious objector status. The Supreme Court heard a plethora of cases and attempted to force an increasing consistency on the chaos. Before Vietnam, the court theoretically had insisted on three standards: 1) sincerity of the claim (which was the area of most Draft Board abuse), 2) a religious basis for this objection, and 3) an absolute objection to participation in war.

The sincerity of a claim standard (1) was articulated in some detail, in a case where the individual appellant’s argument seem to change as each application for CO status failed. (Whitmer v. U.S. 348 US 375, 1955) It remained intact although the capriciousness of Draft Boards’ rulings on sincerity came under increased scrutiny.

Dropping the requirement that objection to participation in war in any form be religiously based (2), was one of the most prominent changes to emerge in the Vietnam period. The court consulted leading scholars of religion, finally accepting the fact that it was effectively impossible to distinguish between a “deep and abiding philosophical objection to participation in war in any form” and more traditionally religion-based claims without effecting a 1st Amendment-prohibited establishment of religious preference. (U.S. v. Seeger 380 US 163, 1965; Welsh v. U.S. 398 US 333, 1970.)

The extension of protection to philosophically based conscientious objection to the draft was part of the much larger process of historical change, especially secularization and cynicism about religion which resulted from World War I, as well as the problem of recognizing the objection of more than just members of historic peace churches. One of the crucial decisions concerned whether a Jehovah’s Witness who believed it was acceptable to use spiritual weapons in defense of the kingdom of God could be conscientiously opposed to participation in human wars. The court agreed that this was a religious and a consistent or sincere claim. (Sicurella v. U.S. 348 US 385, 1955) Perhaps the most prominent case came with the tremendously popular professional boxer Cassius Clay (Muhammad Ali), whose personal opposition to war, based on adherence to the religious tenets, was opposed not by his local board but by the Department of Justice. The Court held with Clay. (Clay v. U.S. 403 US 698, 1971)

The one area in which the Vietnam war did not effect significant change on existing draft law was concerning the third test (3), an absolute objection to participation in war. While a Jehovah’s Witness who would, as in Sicurella, be willing to use spiritual weapons in defense of God’s kingdom was protected, others who asserted the right of “selective conscientious objection,” picking and choosing one’s participation in worldly wars according to a philosophically or a religiously based but not absolute moral calculus, were rejected. Here, the claims of objection to the draft threatened the government in a way that an absolutist or pacifist religious or philosophical objection to participation in war in any form did not. The selective conscientious objector opposes the draft or military service precisely because he judges the particular conflict to be wrong or unjust: violating one or another theory of “just war”. The individual claims that the right of moral conscience both entitles and demands that he decide about whether participation in a particular war is just, rather than relying upon the state. This personally absolute but collectively relativistic claim is a particularly troubling concept for a conscription system, since it stands as an indictment of a war and a government of the moment, which the conscription is supporting.

Just War theory has been part of Roman Catholic theology since the time of St. Augustine (see especially Contra Faustum PL 42:444-9). During the Spanish Inquisition, judges, laying the foundations of modern human rights law, responded to charges brought by Bartolomé de las Casas against the Spanish conquests in the Americas, holding that soldiers had a greater responsibility to obey the laws of God than of man. The United States, in the prosecutions of Nazi war criminals at Nurnberg, held essentially the same thing, giving no weight to the defense that one was “just following orders,” yet it criminalizes Americans who make the same claim against it. In the still applicable legal precedents from the Vietnam period (Gillette v. U.S. 405 US 1006, 1972; Negre v. Larsen 394 US 698, 1969), selective conscientious objection to participation in a war by an individual who has a deep and abiding religious or philosophical conviction that a particular war is immoral or unjust remains illegal in the U.S. This discriminates especially against Roman Catholics and anyone else who, however deeply religious or philosophical its basis, has a conviction that a particular war is wrong. The state, according to our civil religion (Thomasson, 2001a), must know better than the individual what is right and wrong in a particular situation, even though an individual’s objection to a particular war is completely religious in its foundation.

At the same time that the scope of absolutist conscientious objection was broadened in law during the Vietnam war, acceptable venues for alternative service were substantially expanded to include many types of civic service that did not contribute to the military effort.

Apart from those who sought or supported conscientious objector status on principle, a major reason for opposition to the Vietnam era draft arose among those who recognized that it imposed a disproportionate burden on minorities and the poor in general. It also was recognized that these groups suffered an excessive number of combat injuries and deaths. Beside the student (2S) deferments available to those who could afford higher education, just as in the Civil War certain alternatives to combat service in Vietnam were disproportionally available to the well-off in general and the politically well-connected in particular, and to middle-class and more affluent Whites in general. Supposedly draft-obligation satisfying alternatives like the stateside-based national guard units that statistically favored the enlistment of rich and powerful people like George W. Bush and Dan Quayle (with their unprecedented and illegal leapfrogging of waiting lists into stateside “duty”), were unavailable to the vast majority, while enlistment in organizations like the uniformed Public Health Service attained almost legendary status (in their inaccessability to the masses). In the military, race re-emerged despite desegregation, reflected in flak-jacket graffiti such as that “No Vietnamese Ever Called Me Nigger,” and in “fragging” of often southern white officers (assassination, preferably with ballistically untraceable fragmentation grenades). Pressure was building within the military as well as in the civilian sector to change the draft, whatever happened to the war. Also, civil rights leaders such as Martin Luther King, Jr., began to oppose the war because of the enormously increasing social and economic burden it imposed on the nation’s poor and minorities at home. The assassination of Martin Luther King after he emerged as an articulate opponent of the war strained draftee populations to the extreme along racial lines.

In order to quiet opposition to the war and the draft many strategies were attempted. Repression and violence became more common on both sides, and even subtle acts of resistance became widespread. Grade inflation for men students developed at many undergraduate college and university campuses among faculty morally unwilling to flunk a student who might then be expelled, lose his student deferment, be drafted, and die. Because college students were seen as highly opposed to the draft and the war, and graduate schools were seen as a particularly dangerous haven of opposition, the administration had Science Research Associates (SRA) develop a special “College Qualification Test.” In content, the test clearly was biased against students of the social sciences and humanities, and toward the skills common among those in sciences and engineering, who were seen as the least anti-draft/anti-war of student populations, and if recruited by defense firms after graduation were deferred from the draft. A score of less than 80/100 was supposed to end a graduate student’s deferment. Large numbers who scored very highly on other nationwide exams (such as the Graduate Record Exam or GRE, and the miller Analogies Test), did not achieve a passing score on the CQT. But before the plan to draft those who failed could be implemented beyond the testing and score-reporting phase, a substantial outcry at the transparently discriminatory testing ended that effort.

After failure of the CQT effort, an even more drastic departure from universal conscription went into effect. A national draft lottery was instituted by the Nixon administration. As an age cohort arrived at the age of 18, a double drawing was held with one set of balls for every day in the year of their birth, and another set numbered 1-366. At the end, each birthday would have a number-ranking. Individuals whose birthdays were paired with numbers 1-120 were to be assured that they would be drafted in the coming year, while those with higher numbers could live free from concern about the draft. This correspondingly cut down the size of the anti-draft/anti-war movement among young men almost overnight. At the same time, “de-escalation” and “Vietnamization,” euphemisms for American withdrawal from the conflict, further weakened opposition to the draft. Then plans were announced for an all-volunteer military and active conscription ended.

During the Vietnam war, there were twentyseven million men of draft eligible age. Eleven million served, and sixteen million were deferred. At various points through the war, draft deferments could be granted for marriage (ended by President Johnson on 26 August 1965), fatherhood, undergraduate and graduate college study, enrollment in a religious seminary, teaching, physical ineligibility, National Guard or Reserves membership, or Conscientious Objector status. While President Clinton’s legal avoidance of the draft is well known, and Bush and Quayle’s bizarre Guard status has received a little attention (though details of Bush’s one year AWOL and failure to take a mandatory pilot’s drug test still is heavily concealed), they are not exceptional. Newt Gingrich married his High School math teacher, got her quickly pregnant and then, as is notorious, dumped her when neither her income nor a deferment was needed, and despite her suffering from cancer. Dick Cheney and Trent Lott had undergraduate and graduate deferments (though Cheney did not finish a graduate degree), then married and subsequently obtained fatherhood deferments. John Ashcroft was deferred as an undergraduate, and then at Yale Law School, but faced the draft in 1967. He got an occupational deferment, arguing, ludicrously, that his job as a business law professor at Southwest Missouri State University was essential to the nation’s defense (this kind of exceptional deferment was, needless to say, only available to the white, rich and powerful). Dennis Hastert had a student deferment while eligible for the draft. Al Gore did a short but controversial tour of Duty in Vietnam. (Gore’s father lost his senate seat representing Tennessee in 1970, in large part because of his opposition to the war and his support of civil rights.) As Robert F. Kennedy was fond of pointing out during the Vietnam war, White Americans were all too fond of sending poor Blacks and Chicanos off to fight and die while they found refuge somewhere else.

The Draft in Neutral Gear

Today, the draft law survives on a standby basis, requiring universal registration of males within ten days of their turning 18. Registration forms, since this plan was instituted, carefully preclude individuals making a claim for conscientious objector status, unless they go to extreme lengths to document their claim by legal means not provided by the system. Those who refuse to register are denied student loans and other government benefits. At the same time, media-propaganda, even by ostensibly counter-culture bands such as “zztop” seek to make registering seem anything from innocuous to cool. This carrot and stick approach seems to work on paper, but is in fact quite problematic, while a poor economy, for the lower class-even in times of “bull” markets–also serves as a powerful stick.

Today many people are aware that even loud super-patriots such as John Wayne avoided the draft, and that the movie “service” of Ronald Reagan in World War II was a joke. After Vietnam, cynicism about the draft virtually became the rule. In the 1990s, a number of conservative voices have been raised advocating a return to conscription because of drops in enlistments and re-enlistments. But those drops have correlated with unpopular and dangerous American military involvements and their aftermath (Lebanon, Somalia, the Gulf War, various operations in the Balkans, etc.), as well as more lucrative civilian sector job markets in recent years, and there is no evidence that either a universal draft or a lottery would be more acceptable today. Instead, any attempt to resurrect the draft almost certainly will be met by massive non-cooperation, resistance, and court challenges from young men, especially since large numbers of women are assigned to and have served in military combat roles, and are prominently portrayed in those roles in military media recruiting campaigns. American culture has changed since the 1970s. Young men, having been raised with the rhetoric of equal rights, and perceiving a disadvantage–whether real or not–in civilian sector education and employment opportunities due to affirmative action preferments, will be quick to demand equal protection under the 14th Amendment, and refuse to accept the old Victorian arguments about stereotyped gender roles or an absolutely non-existent constitutional original intent exempting women from conscription. It is unlikely that the draft of old, like Humpty-Dumpty, ever could be put together again without massive civil disruptions, despite the efforts of all the king’s or nation’s war horses and men, or even its dogs of war.

———————1 I am especially indebted to John R. Holland, A.M., Esq., with whom I began the study of this subject, 1969-1971, and three of my then UCSB professors of Religious Studies: Robert S. Michaelsen and the late Walter Capps who encouraged it, and Thomas F. O’Dea who was not ashamed of having been classified as “PAF” (Prematurely anti-Fascist). It is dedicated first to the memory of my former U.C.S.B. student and friend Frank Teruggi, who was murdered by the Pinochet regime because, as did his colleague who is depicted in the film “Missing”, Frank also knew too much of direct American troop involvement in the coup. And at last, this is dedicated to America’s “Founding Fathers”, who anticipated all too accurately how their constitution could/would be perverted.

2 An original survives in the Thomason Collection of the British Museum. A copy will appear elsewhere on this web site. I hope George Thomason is as proud to claim me as a descendant as I am to claim him as an ancestor.

Gales, Joseph, compiler.
1834 Gales and Seaton’s History of Debates in Congress (The Annals of Congress) Vol. 1, the First Congress, parts 1 and 2). Washington, D.C.: Gales and Seaton.
Annals of the 1st Congress, part 1 (1789-1790).
Annals of the 1st Congress, part 2 (1790-1791).

Rossiter, Clinton, editor.
1961 Federalist Papers. New York: Mentor.

Seeley, Robert A.
1994 Choosing Peace: A handbook on war, peace, and your conscience. Philadelphia and San Francisco: Central Committee for Conscientious Objectors.